UNITED STATES

v.

ATLANTIC DREDGING COMPANY, W. B. BROOKS, AGENT

After stating the case as above,

Mr. Justice McKenna delivered the opinion of the court.

The case turns upon the statement of the Government of its belief of the character of the material to be en countered, and, as misrepresentation, the omission from the map exhibited to bidders of the actual borings made and their disclosures.

The Government asserts that there was no misrepresentation, basing the assertion upon the declaration of the specifications that no guarantee. was intended-and the admonition to bidders that they must decide as to the character of the materials to be dredged, .and to “make their bids accordingly.”

The assertion puts out of view, we think, other and determining circumstances. There was not only a clear declaration of the belief of the Government that its representation was true, but the foundation of it was asserted to be. the test of actual borings, and the reference to maps as evidence of what the borings had disclosed. The finding is that the maps contained a record of twenty-six borings as covering specified sections that were to be dredged, and of these ten were in the section of the river, which by its contract; afterwards made, the plaintiff agreed to dredge.

There was a further assertion of belief, through its “contracting officer,” by the approval of the company’s plant. As we have seen the Government’s care of its interests extended to the inspection of the instrumentalities of the contractor, and required the character and capacity of the plant which was to be used, to be submitted for inspection and approval. In fulfillment of the requirement the company submitted its plant. It was only-; efficient for dredging material of the character mentioned in the specifications and described on the map, and it was so approved. The significance of the submission and approval are manifest. The character and capacity of the plant conveyed to the officer the fact that the company was accepting as true the representation of the specifications and the map of the materials to be dredged; and reciprocally the approval of the plant by the officer Was an assurance to the company of the truth of the. representation and a justification of reliance upon it..

The case is, therefore, within the ruling of United States v. Spearin, 248 U. S. 132, 136, where it is stated that the direction to contractors to visit the site and inform themselves of the actual conditions of a proposed undertaking, will not relieve from defects in the.plans and specifications, citing Christie v. United States, 237 U. S. 234; Hollerbach v. United States, 233 U. S. 165, and United States v. Utah, Nevada & California Stage Co., 199 U. S. 414. It is held in those cases "that the contractor should be relieved, if he was misled by erroneous statements in the specifications.” The present case is certainly within the principle expressed. In the cited cases there was no qualification of the requirement; in this case it was accompanied by the expression of belief, and conduct which was, in effect, a repetition and confirmation of the belief and gave assurance that it had a reliable foundation. The company, therefore, was justified in acting upon-it.

The Government, however, contends that, at best, the alternative was presented to the company, when it discovered the character of the materials, to either quit work and sue for damages, or continue the work; and that having elected the latter, it cannot now resort to the other. In fortification of this contention it is said that "even if the Government had made a misrepresentation as to the borings, that misrepresentation would necessarily have been as to the character of the materials to be dredged, and claimant knew all there was to know about this from the ‘very beginning.’”

This assumption and the extent of it and the conclusion from it, are not justified. It is true the company discovered that the material it encountered was different in character ’from that represented, but the company did not know of the concealment of the actual test of the borings, and the fact that the company attempted to struggle on against the difficult conditions with its inefficient plant should not be charged against it. In other words, it should not now be held to have been put-fo the suggested election. It did not know at that time of the manner in which the ‘ ‘ test borings ’ ’ had been made. Upon learning that they had been made by the probe method, it then elected to go no further with the work, that is, upon discovering that the belief expressed was not justified and was in fact a deception. And it was not the less so because its impulse was not sinister or fraudulent..

The Government makes the point, however, that the implication of the case is that bad methods were used, and insists that the implication makes the action one for a tort, and-not tenable against the United States. We cannot assent. There is no intimation of bad faith against the officers of the Government and the Court of Claims regarded the representation of the character of the material as the nature of a warranty; besides, its judgment is in no way punitive. It is simply compensatory of the cost of the work, of which the Government got the benefit.

Affirmed.

The Chief Justice and Mr. Justice Clarke dissent.